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“One is not exposed to danger who, even when in safety is always on their guard.” – Publilius Syrus (circa 60 BC)

Ludit Lexus – J.Davies (2020)

Introduction

In part one of our discussion on disputes and issues resolution, we explored strategies for effectively dealing with disputes internally. The key theme here was to resolve issues quickly, fairly and at the lowest possible level. In some circumstances though internal mechanisms may be insufficient to resolve critical disputes. In our current volatile and uncertain environment, some aspects of the commercial relationship may not be possible to perform and the contract could be frustrated.[1] Even force majeure can introduce substantial uncertainty to the performance of the contract. We therefore need to anticipate mechanisms to deal with serious issues that cannot be effectively resolved through internal measures. We should not rely on litigation or arbitration to seek resolution. Litigation and arbitration are very time consuming, expensive and uncertain processes that are very unlikely to support future positive relationships. Consequently, we must explore other, less destructive, external resolution mechanisms.

External Disputes Resolution Options

In our first blog we recognised that disputes and issues resolution processes and largely unfettered so long as they do not ‘oust the jurisdiction of the courts’. This means that we are free to select any form of disputes and issues resolution process so long as the commercial agreement does not fetter any party in pursuing litigation until after the dispute resolution process has run its course. For effective collaborative outcomes we need to adopt the same mantra of disputes and issues resolution principles we explored earlier; that is resolve quickly, fairly and at the lowest level practical. Once we move to external disputes resolution, solving problems at the lowest level means anything other than arbitration or litigation. Best practice resolution here includes mediation and expert determination

Mediation

The Resolution Institute offers a succinct definition of mediation as follows;

“Mediation is a confidential process where an independent and neutral third party assists the disputants to negotiate and reach a decision about their dispute.”[2]

The role of the mediator is not to impose a solution or binding outcome, rather the mediator facilities a joint, win-win outcome by exploring issues and positions of the parties collaboratively.

A mediator will only participate in the process if all parties are committed to resolution of issues in good faith. Mediation is usually the quickest and cheapest of all the external dispute resolution processes and is also more likely to preserve positive business relationships.

Expert determination

For technical disputes, an expert can be employed in a resolution role. Quite often the expert’s ruling is considered binding. The Australian Institute of Arbitrators and Mediators recommend the following rules apply to expert determination:

The Expert shall determine the Dispute as an expert in accordance with these Rules and according to law.

The parties agree that:

the Expert is not an arbitrator of the matters in dispute and is deemed not to be acting in an arbitral capacity;

the Process is not an arbitration within the meaning of any statute.

The Expert shall adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay and expense, so as to provide an expeditious cost-effective and fair means of determining the Dispute.

The Expert shall be independent of, and act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting its case and dealing with that of any opposing party, and a reasonable opportunity to make submissions on the conduct of the Process.[3]

For more complex and long-term commercial arrangements, parties may pre-select the expert for each discipline area. For example, the parties could pre-select an expert for pricing issues, technical solutions, or for contract interpretation.

There are several permutations in how the expert can decide on an issue. In most cases, the expert is free to come to their own conclusions as to how the dispute should be settled. In other cases, the expert may be bound to select a course of action between the ambit of the parties’ positions.

A variation of the expert determination decision making process is final offer arbitration or baseball arbitration.[4] In this situation, an expert is only permitted to select one course of action provided by one of the parties. There is no scope to select within the middle ground. Consider the following example:

A supplier is seeking additional sums related to a substantial contract change proposal initiated by the customer. The customer is expecting a $100,000 increase in costs associated with the change, whereas the supplier expects the change to incur an additional $500,000 in costs. If the parties wish to resolve this issue via baseball arbitration, then they will need to submit a best and final offer to the arbitrator. Each party does not get to see the final offer from their counterparts. The arbitrator will estimate the cost of the contract change proposal and will select the best and final offer that is closest to their expert estimate. In this example, the expert may decide that the additional costs are $250,000. If the customer digs in their heels and sticks to the $100,000 additional sum, but the supplier is more reasonable and adjusts their escalation fee to $300,000 then the arbitrator will select the $300,000 escalation fee since this figure is closest to the arbitrator’s estimate.

Baseball arbitration prevents any one party making outrageous or unfair claims for fear that their claim will be considered less equitable or fair when compared to the other party’s claim. This can be implemented relatively quickly and cheaply provided there is an arbitrator with the necessary skills available. By design, this approach nudges parties to provide reasonable offers and will likely preserve business relationships.

Conclusions

For resolving disputes and issues, we must first craft a commercial strategy that minimises the likelihood of disputes and issues arising in the first place. Fair and equitable risk allocation, early engagement, and transparency are all tools we can adopt to achieve this. Nonetheless, we need to anticipate disputes arising and ensure our contract has effective internal disputes and issues resolution processes. With an effective collaborative culture, we should not expert disputes and issues to require external resolution processes, but we should not create a situation where arbitration and litigation is the only step available to us. Mediation and expert determination should be considered, especially for longer term, strategic relationships.

“Bulls do not win bullfights; people do. People do not win people fights; lawyers do.” – Norm Augustine (Chairman and CEO of the Lockheed Martin Corporation)[1]

Lawyers at Twenty Paces – L. Ruigrok

Introduction

In previous blogs we recognised that for effective collaborative, we require disputes and issues to be resolved at the lowest possible level, quickly, and fairly. In an increasingly volatile economic environment, we should be investing in our business relationships to ‘engineer in’ resilience to the partnership to effectively deal with both high risks and uncertainty. To achieve this, we should not hobble ourselves with a business relationship that is likely to generate unnecessary disputes. In addition, we need a commercial framework that supports timely and effective resolution of disputes when they arise.

Resolving disputes and issues at lowest possible level, quickly, and fairly is an unremarkable observation but just how is this achieved? We certainly need to avoid litigation and the associated delays and extortionate costs involved in such actions. There are several strategies we can pursue to do so. These include preventative measures, to minimise the likelihood of disputes, and corrective measures to minimise the consequences of disputes. We previously explored how many disputes can be prevented through a fair risk allocation process and shared objectives. In other words, we can reduce the likelihood of disputes arising. Despite our best attempts, disputes and issues may still arise and therefore we need to explore corrective measures to mitigate consequences. Corrective measures include internal disputes resolution and external disputes resolution. The first part of this blog explores how we can effectively deal with internal dispute resolution.

Legal Frameworks

We need an understanding of how the law operates so that ‘the art of the possible’ is contemplated in our contract. The ability to seek resolution of issues and disputes outside of the courts in common law countries is mostly unconstrained, provided that the commercial relationship does not attempt to ‘oust the jurisdiction of the courts’. This was not always the case. In the 19th century, there was a perverse incentive for the courts to encourage litigation and eschew arbitration as observed by Lord Campbell in Scott v Avery:

“…judges depended mainly or almost entirely upon fees and they had no fixed salary, there was great competition to get as much as possible of litigation into Westminster Hall, and a great scramble in Westminster Hall for the division of the spoil… [the courts] had great jealousy of arbitrations, whereby Westminster Hall was robbed of those cases which came neither into the Queen’s Bench, nor the Common Pleas, nor the Exchequer.”[2]

Fortunately, the decision in Scott v Avery recognises the validity of arbitration as a legitimate dispute resolution mechanism and many jurisdictions have subsequently enacted legislation that governs the arbitration process in contractual disputes.[3]

So long as a commercial agreement does not prohibit the courts for determining matters at some stage then there is great latitude in crafting effective disputes and issues resolution provisions in our contracts. Only with the more radical ‘no disputes/no litigation’ clauses we see in some project alliance agreements can legal obstacles arise.

Prevention is Better Than Cure

In our previous blog on commercial models, we recognised that disputes and issues are far more likely to be minimised when we have:

A shared vision;

Early engagement;

Fair and equitable risk allocation;

A remuneration strategy where all parties win, or all parties lose;

Openness and transparency; and

Joint decision making.

These features will never eliminate disputes or issues but makes them far less likely. We need to also recognise that when disputes or issues arise, this may not necessarily be a bad thing. Where issues are raised in a timely and constructive manner, this could be a positive symptom of effective communication and a display of trust between the parties. We should actively encourage prompt reporting of relevant issues and not allow them to fester.[4] How then do we incentivise such behaviours?

Encouraging Timely and Effective Dispute and Issues Resolution

Crafting a disputes and issues escalation process into a contract will encourage collaboration. Parties should be committed to ‘fixing the problem and not fixing the blame’.[5] An example clause used to encourage such behaviour is as follows:

(a) the parties agree that all disputes, differences of opinion and questions (Disputes) arising out of or in connection with this Agreement will be initially escalated and attempted to be resolved through the Joint Project Management Team.

(b) The parties agree that their attempts to resolve Disputes will occur in a timely manner. The parties will at all times, to the extent reasonably possible, seek to resolve the Dispute at the lowest appropriate level, act in a manner that will minimise any delay to the Project and that will minimise and mitigate the consequences of the parties or a party incurring any or any additional costs or liability.

(c) If a Dispute cannot be resolved through the Joint Project Management Team within 14 days, the Dispute is to be referred to the respective parties’ Managing Directors for resolution.

Clauses such as the above drive parties to resolve issues at the lowest level and as quickly as practical. Such mechanisms though will only be effective if all team members are aware of their obligations and leaders are committed to the above principles.

In addition to contract provisions, dispute and issues may also be addressed in a partnering charter. The following is an extract from the Partnering Charter for the ANZAC Frigate Group Maintenance Contract.

No Blame Culture. A no blame culture exists when all personal are welcomed to raise all, and any issue with the knowledge of being treated fairly and without fear of retribution for raising the issue.

Problem Solving. In a no blame culture, problems are solved collaboratively to ensure we minimise consequences.

We must recognise that partnering charters may have no binding legal force; however, they are useful for focussing efforts of the parties in meeting mutual objectives.

More radical disputes and issues resolution strategies involve a commercial framework with an express ‘no disputes/no litigation clause’. These provisions are used in extensively in project alliance agreements.[6] No litigation clauses such as the above deviate from most contracts in that the parties rely on a gainshare/painshare remuneration framework to drive performance. Whilst a noble attempt to foster collaboration, a no litigation framework is very risky from a legal perspective as such clauses do attempt to oust the jurisdiction of the courts. Many other risks with a no litigation/no liability framework also exist including

A no disputes/no litigation commercial framework certainly maximises the likelihood of positive collaborative outcomes but also introduces new, substantial risks.

Conclusions

Whilst prevention is better than cure, we must anticipate disputes and issues arising in our business relationships. Our commercial framework must be crafted to deal with such issues at the lowest possible level, quickly, and fairly. The contract terms themselves can achieve such outcomes as can a suitable partnering charter. In the next part of our discussion on disputes and issues resolution, we will explore external mechanisms such as expert determination, mediation, and other novel techniques to resolve disputes whilst still preserving positive business relationships.

Collaboration demands effective leadership to drive the right collaborative culture, reinforce collaborative behaviours, and provide effective role models to the team. The UK NAO makes this point clear:

“Every case study ranked leadership as the most important factor in developing collaborative relationships.”[1]

A meta-analysis of strategic alliances by Duysters, Kok, and Vaandrager found that the leading causes of strategic alliance failure stemmed from shortcomings in leadership including:

We know that the right commercial model is crucial to driving collaborative behaviours but we also need to recognise the critical importance of leadership. In this blog we will explore how leaders can foster a positive culture, drive the right behaviours, and create the best environment to achieve collaborative outcomes.

Leadership Approaches that are Incompatible with Collaborative Ventures

Not all leaders will be immediately equipped to deal with collaboration. This is particularly true for those leaders that have spent most of their careers engaged in transactional, arms-length commercial dealings. As we are moving to more complex, fast paced, and emergent environments, leadership models will need to change. Consider the following comment made to the United Kingdom Parliament by the Director General of the United Kingdom’s ill-fated National Programme for Information Technology (Health):

“Managing the National health Service IT suppliers is like running a team of huskies. When one of the dogs goes lame, it is shot. It is then chopped up and fed to the other dogs. The survivors work harder, not only because they have had a meal, but also because they have seen what will happen should they themselves go lame.”[3]

This IT project was highly complex, involved multiple parties, and included an exceptionally diverse range of influential stakeholders, all with divergent needs. This key message made by the programme Director General unambiguously demonstrated that there was no scope for collaboration and self-interest reigns supreme. If leaders wish to effectively pursue collaborative ventures, then they must eschew attitudes such as these.

Leadership and Culture

“Leadership sets the ‘tone at the top’, and is absolutely critical to achieving an organisation-wide commitment to good governance.”[4]

Leadership and culture and intricately linked. Leaders set an example to all teams (buyer and supplier) and set the standards of behaviours. For successful collaboration, this means:

Driving enterprise goals and creating a shared vision,

Commitment to a no blame environment,

Fostering trust between all organisations, and

Pursuing a high-performance culture.

Organisation may not immediately have the ‘right’ culture to pursue collaborative ventures and we need to rely upon the leaders of the organisation to shift the organisational culture where necessary. This can be a significant challenge where ‘business as usual’ approaches typically rely on transactional commercial dealings. How then should leaders craft the right environment to establishing the right ‘culture and mindset’[5] in the organisation?

Leadership and Change Management

“If you want to make enemies, try to change something”. Woodrow Wilson

When organisations need to shift towards a more collaborative approach, it is up to leaders to make this happen. Leaders need to motivate their teams and sell the benefits of collaboration. This is more easily said than done. One area leaders need to be aware of in their teams is a ‘sense of identity’. In Kwan’s paper, The Collaborative Blind Spot, she makes the observation that:

Identity provides groups with a center of gravity and meaning in the company, which help build a sense of security or Group legitimacy.[6]

Leaders need to recognise that groups may feel vulnerable when forced to collaborate and therefore leaders may need to adopt a change management approach that steers groups towards enterprise outcomes and create a new high-performing ‘collaborate’ group. Whilst being sensitive to group and individual needs, leaders should not allow business units to become their own caliphates and deviate from the organisational vision and desired culture. This is not a ‘one-off’ activity and demands continual attention as observed by the Australian Government’s Guide to Alliance Contracts

“The desired culture should align to the behaviours required to enable the key [collaborative] features such as good faith and ‘no disputes’ to operate. Often the desired behaviours are described through establishing an Alliance Charter which documents the alliance values. However, the real culture of a team is demonstrated in how the team behaves and interacts.” [7]

Leaders need to be constantly vigilant to ensure that their teams behave and interact according to the agreed values of the collaborative venture. Where the right behaviours are not demonstrated, leaders should make tough but fair decisions, including the removal of personnel whose behaviours are not compatible with the collaborative venture. Such drastic actions though would be futile if the leaders themselves are not displaying the right behaviours and taking a proactive approach to collaboration. The cliché that, the fish rots from the head down, is therefore highly relevant to collaborative relationships. Leaders must be acutely aware that their behaviours are being closely watched by their own teams and their supplier or buyer counterparts. As recommended in ISO 44001 Collaborative Business Relationships, a Relationship Management Plan should be agreed that [emphasis added]:

“identifies the project sponsors or senior responsible officers and reinforce their commitment to the collaborative contracting arrangements.”[8]

Conclusion

As we have stated in these blogs previously, there is no single factor that will ensure success in collaborative ventures. Similar to having the right commercial model, effective leadership is a must for successful collaboration. Leaders set the tone and culture of the organisation and are ultimately accountable for the success or failure of the organisation. To achieve this, leaders must be effective role models, must be committed to a shared vision, and be adept at change management. Future blogs will explore joint government structures in collaborative ventures and how leaders operate under such arrangements.

To realise the full benefits of collaborative contracts, we need the right commercial model. If we rely on transactional ‘boilerplate’ contract terms and conditions, then we are unlikely to achieve the full range of collaborative benefits that we have discussed in earlier blogs. It is not just the contractual terms that we need to explore but also the market engagement strategy as well. That is, how do buyers and suppliers interact before contract signature. This blog subsequently explores strategies for aligning commercial models to best realise collaborative outcomes.

Do We Need a Contract At All?

Businessmen often prefer to rely on “a man’s word” in a brief letter or handshake or “common honesty and decency” – Stewart Macaulay (1963).[1]

In Stewart Macaulay’s seminal paper on non-contractual relationships, he asks the question, “why do businesses use contracts in light of its success without it”.[2] The hypothesis offered by MacCaulay is that contracts and contract law are irrelevant since there are many non-contractual sanctions available to buyers and suppliers to achieve the required business outcomes. Why then do we need contracts to pursue collaborative contracts where the relationship should be underpinned by trust, a shared vision, and a desire for long term relationships?

Relying on trust and good-will alone is likely to lead to failure. Contracts are tools to communicate and manage the obligations of parties in concert with the desired collaborative behaviours. We also need contracts to provide a level of certainty to establish insurance requirements, seek financial approvals, and meet statutory obligations (both within the public and private sector). To pursue a collaborative venture without a contract is a very dangerous proposition and could result in the parties to the relationship accepting significant liabilities, especially with the imposition of the law of equity and quasi-contract obligations.

Commercial Frameworks Designed to Drive Collaboration

Max Abrahamson’s principles can be summarised by the often-used commercial tenet of ‘transfer the risk to the part best able to manage the risk’.[3] For many organisations though, this principle is often ignored. The temptation to transfer significant risks to suppliers is very alluring, especially where buyers command significant market power. Such strategies will often erode value for the following reasons:

Suppliers will load their contract prices with substantial contingencies or management reserve to deal with risks. These costs are often passed onto the buyer whether the risk eventuates or not,

Unreasonable risk allocation may result in fewer bids and lessened competition,

Where inappropriate risks are transferred to suppliers, there may be a perverse incentive for suppliers to compromise on quality or behave opportunistically (e.g. bid low and make profit on variations), and

In complex projects, buyers may not have ‘clean hands’ and may not be able to effectively seek remedies under the contract where risks materialise.

To illustrate the significant problems with inappropriate risk
allocation, a research report by the Construction Industry Institute identified
that:

Inappropriate allocation of
risk resulted in a 14 percent increase in costs to projects. Of this amount,
the customer was liable for 78 percent of the cost increase.[4]

The other key problem we face with risk transfer in contracts is that the contract may only effectively deal with known risks. That is, uncertainty[5] may not be adequately addressed. If we want to pursue collaborative outcomes, then we naturally need to adopt a more collaborative approach towards risk management.

Commercial Strategies That Encourage Collaboration

We know that transactional boilerplate contracts that aim to shift the maximum amount of risk to suppliers will thwart collaboration, but what strategies can we adopt to maximise collaborative outcomes? Whilst not exhaustive, the following themes emerge in successful collaborative ventures.

Early industry engagement. Early and holistic
identification of risks and opportunities will foster collaboration and ensure
subsequent risk allocation and sharing strategies are fair and equitable.

Prudent and Equitable Risk allocation. To encourage
collaboration, we should not place too much risk on suppliers. Where substantial contract value is at
risk then suppliers will be more likely to be risk averse and will not
effectively pursue innovation and ‘best for project’ outcomes. Consistent with
a shared vision, all parties should have reasonable ‘skin in the game’.

Joint Management and Ownership. Joint management and ownership does not mean that the parties should embark upon an incorporated joint venture or alliance agreement. Joint management means that the parties work collaboratively on a ‘best for program basis’ to deliver joint outcomes. This may involve joint decision making for key areas, joint risk management, co-location of key team members, and shared systems (which ensure there is a single source of truth).

Transparency. Collaboration is far more likely when
parties have full visibility of risk, issues, and opportunities throughout the contract
lifecycle. Open book financial reporting, and shared risk logs all support the
development and maintenance of trust.
Transparency also supports the collaborative contracting aim of no
surprises.

Effective Disputes and Issues management. A commercial framework is needed that ensures disputes and issues are resolved at; the lowest level, quickly, and equitably.

If we want to sabotage our efforts to drive collaborative
outcomes and erode value then I would recommend the following commercial strategy:

Do not engage with industry at any stage. Ignore industry’s wealth of knowledge and their understanding of the risks in their core business.

Insist upon ‘unlimited liability’ for all risks and place as much of the contract value at risk as possible.

In the tendering stage, apply onerous conditions of tender on suppliers (with sanctions for breach) but at the same time claim that the customer is not bound by this same ‘tender process’.

Make sure the tender evaluation criteria places a very high weighting on price and ensure that the contract duration is for as short a term as possible.

Ensure all issues and disputes are resolved through litigation.

Summary

If we wish to pursue effective collaboration and reap the
known benefits of collaborative contracts, then we must select an appropriate
commercial model. Having the right
culture, motivation, leadership and commitment to collaboration alone is
insufficient. Trying to apply a collaborative framework with a transactional,
arms-length commercial model is akin to putting ‘lipstick on a pig’.